WEST VIRGINIA RECORD

POINT PLEASANT – Following the lead of a Mason County physician, an Ohio man has brought a malpractice suit against a former Point Pleasant doctor, now living and working in Illinois, without filing a certificate of merit.

On Dec. 12, Ralph A. Barcus, of Gallipolis, Ohio, filed suit against Dr. Jack Levine. In his suit, Barcus, who is represented by Michael A. Eachus, of the Gallipolis law office of Eachus and Finley, named Pleasant Valley Hospital as a co-defendant.

In his suit, Barcus, 65, alleges both committed malpractice when Levine in 2001 failed to remove the entire catheter he inserted into Barcus' chest two years earlier.

Though he provided both defendants the requisite 30-day notice of a pending lawsuit, Eachus maintains that the malpractice was so obvious that a certificate of merit from a qualified physician in Levine's field is not necessary.

Eachus position is similar to one taken by Dr. Danny R. Westmoreland in his appeal to the state Supreme Court claiming that a 2003 law designed to curb malpractice cases actually hamstrings legitimate ones.

Remnants of catheter left for five years

According to court records, Levine inserted a Mediport catheter into Barcus' chest on Nov. 22, 1999. On May 23, 2001, Levine would later remove Barcus' catheter.

Though court records are not clear as to when, but Barcus' claims to experience chest pains after the catheter's removal. He maintains that prior to the catheter's insertion, he never had chest pains.

Barcus was later examined by Dr. Dominic Gaziano on Oct. 25, 2004. Gaziano, records show, took an X-ray of Barcus' chest and discovered an object in is mid-left lung.

Despite continued pain in the chest, it was not until almost two years later that Barcus dealt with the problem. Records show Dr. Richard Schlanger, assistant director of clinical surgery at Ohio State University's Medical Center, removed a holding disc from Barcus' chest on Oct. 5, 2006.

Later that month on Oct. 26, Eachus sent a notice of Barcus' intention to file suit against Levine and PVH. Since Levine was an employee of PVH, Eachus alleged, they, too, were responsible for Barcus' pain and suffering.

Court record show that both Levine and PVH were sent their respective pre-suit notifications via certified U.S. Mail. Though PVH accepted their letter, and subsequently requested additional information, Levine failed to reply within the 30-day deadline which ended Dec. 4.

Also, records show PVH, after Eachus honored their request for additional information, failed to respond by the deadline.

Negligence 'speaks for itself'

Despite providing Levine, who records show left Point Pleasant in 2002 to practice medicine in Shelbyville, Ill., and PVH with a pre-suit notification, Eachus declined to send an accompanying certificate of merit. The mistake Levine made, Eachus alleges, was so obvious that one is not needed as required by the Medical Professional Liability Act of 2003.

In an effort to stem the tide of doctors leaving West Virginia because of increasing premiums to cover malpractice suits, the Legislature passed and Gov. Bob Wise signed the MPLA into law. Among its features were the 30-day pre-suit notification of a pending malpractice claim, and a certificate of merit from a qualified physician saying the suit has validity.

However, Eachus maintains that in Barcus' situation, case law outweighs statutory law. To buttress his point, Eachus cited the Court's using the doctrine of res ipsa loquitur, or "the thing speaks for itself," in its 1991 ruling in the case of Farley v. Meadows, M.D.

"When a surgical sponge or scalpel shows up in the chest of a veteran of open-heart surgery," the Court said in its opinion, "the only inference that can be drawn is that the foreign object was left in the chest from surgery."

Applying the Court's finding in Farley to Barcus' case, Eachus' maintains that since Barcus, who never had chest pains prior to the insertion of the catheter, but later experienced pain after the catheter's removal partially due to remnants of the catheter being found in his chest, can only be the result of Levine's negligence.

PVH dismissed form suit, Levine denies negligence

Though it did not file a reply to Barcus' suit by the Dec. 4 deadline, PVH, through its attorney Paul Farrell of the Huntington law office of Farrell, Farrell and Farrell, did reply to the allegations against them. In their Dec. 28 reply, denied anything they did contributed to Barcus' condition.

Also, though they admitted Levine had "staffing privileges" at PVH from July 21, 1988 to Dec. 31, 2001, they were not his "principal employer." Because of this, and Barcus' failure to supply a certificate of merit, Farrell filed a motion Jan. 8 to have the case against PVH dismissed.

Mason Circuit Judge Thomas C. Evans III set March 16 as the date to hear PVH's motion. However, Farrell said prior to the hearing Eachus agreed to voluntarily dismiss PVH from the suit, and focus on Levine instead.

Eventually, Levine, too, filed a reply to Barcus' suit. Though his attorneys Barry M. Taylor and Gary A. Matthews of the Huntington law firm of Jenkins Fenstermaker, Levine on Jan. 18 said he "denies any alleged negligence on his part and further denies that his conduct, if any, caused injury and/or damage to the plaintiff."

Also, Taylor and Matthews maintain that res ipsa loquitur is not proper in this case and, because of that, "asserts all of the limitations, restrictions and requirements that are set forth in MPLA."

Westmoreland appeal may guide outcome

Unless Evans makes a ruling before then, Westmoreland's case, now pending before the Supreme Court, could determine the outcome of Barcus' case.

In the 2005 malpractice suit he brought against Dr. Shrikant K. Vaidya, a Point Pleasant urologist, Westmoreland maintains that Vaidya so deviated from the standard of care, that a certificate of merit was not necessary. When in the course of Vaidya's performing a cystoscopy on him in 2003 for the removal of sent in his ureter, Westmoreland told him repeatedly to stop because of the pain he was feeling.

Vaidya's refusal to stop the procedure, Westmoreland alleges, violated the "no means no" principle.

Like Taylor and Matthews, Rob J. Aliff, co-counsel for Vaidya, took a hard line that the MPLA applied in Westmoreland's suit against Vaidya. Kanawha Circuit Judge Tod J. Kaufman, who was appointed as a special judge to hear the case after Evans and Judge David W. Nibert recused themselves, agreed, and dismissed the case on Oct. 26.

In February, Westmoreland, with the assistance of Robert W. Bright of the Story Law Offices in Pomeroy, Ohio, filed an appeal. In their reply filed the next month, Aliff, and his co-counsel Thomas J. Hurney Jr. and Amanda Hoback with the Charleston law office of Jackson Kelly, continue to tout the legislative intent of the MPLA.

The case is currently pending before the Court. At this point, no action has been taken, according to Court spokeswoman Jennifer Bundy.

Mason Circuit Court case no. 06-C-173 (Barcus)